PROTESTORS HAD already gathered in front of the Supreme Court when Jim tumbled out of his car in a new tan blazer and raced toward the building, past the young man whipping a Bible above his head, past the old man shouting “God hates fags.”
He was late and he knew it, delayed by his third television interview since early that morning. He glanced to his right, where several hundred people hoping to get a ticket to oral arguments waited in a line that had formed the night before and now snaked down the leafy edges of East Capitol Street. In less than twenty-four hours, nine Supreme Court justices would hear Jim’s story. Finally, they would know John’s name.
For a brief second, Jim felt confident, giddy, wooed by a frenzied crowd that had come to the courthouse because it seemed as if the country was on the cusp of change, the national map tipped toward something close to victory. Volunteers with the ACLU handed out water bottles to the people in line, dripping sweat in the late-April sun. Schoolchildren sang the national anthem and supporters who had driven through the night waved flags above their heads, a canopy of rainbow colors.
All of the plaintiffs were crammed shoulder to shoulder on the courthouse steps except for two-year-old Cooper Talmas-Vitale, the youngest, who toddled from the sidewalk to the plaza and the plaza to the sidewalk in a navy-blue blazer, paying no mind to the photographers who were waiting to snap a final group shot. Jim squeezed in on the end next to David Michener, who had moved his three children from Cincinnati to the Delaware shore after his husband died. Jim adjusted his glasses and smiled.
“We’re going to win. I can feel it,” someone called from the crowd below.
Jim was always hopeful in the daytime, when friends talked about making history and the hours whizzed by, another reporter needing an interview, another e-mail needing an answer. The restlessness came at night, when thoughts about hearts and minds and the democratic process blurred the tenuous line between faith and uncertainty and Al’s words of caution lingered in the dark. Anything can happen. It could go either way.
Jim moved away from the steps as reporters called his name. “How do you feel?” “Are you ready for tomorrow?”
He stood before a series of television cameras and clipped a microphone to his lapel. “Standing up for your loved one, for the person you’re committed to, it’s an honor.”
Behind him, an angry man with a meandering gray beard called, “Homosexuals will not enter the Kingdom of God.”
“That’s all we’re asking for,” Jim said, “to be treated like any other American citizen.”
The bearded man persisted: “God will bring his wrath on this nation.”
“Marriage is a fundamental right. I deserve the same as every other American citizen.”
“Burn in hell!”
Jim ignored the insults, but it pained him every time, some cold, clueless stranger stomping all over the twenty-one years he had spent with John. He weaved through the crowd and headed across town to a party hosted by Freedom to Marry in a high-rise law office with sweeping views of the Potomac River. The room was crowded with Washington’s liberal power brokers and gay rights leaders, including lawyer Evan Wolfson and dozens of couples who had filed lawsuits long before Obergefell. Pam and Nicole Yorksmith, mildly exhausted, navigated a double stroller between the tables, with Joe Vitale, Rob Talmas, and Cooper following close behind.
White House Senior Advisor Valerie Jarrett had come to toast the plaintiffs. “The word that really touches me tonight looking at all of you is the word love,” she said, and the crowd erupted in cheers.
Jim ducked out early, leaving his white wine untouched. In the four days since he had landed in Washington and dropped his bags at a rented townhouse in Georgetown, he had attended three lunches, one brunch, four receptions, two press conferences, and so many one-on-one interviews that he had lost count. His niece, Kara Obergefell, had come in from New York to stay with him, along with old friends Adrienne Cowden and her husband, Eric Avner. They had stocked the townhouse with wine, brie, tortilla chips, toothpaste, and an iron even though Jim’s gray suit for his day at the Supreme Court was hanging neatly in a closet upstairs. Avner also brought along a copy of the Cincinnati Enquirer with Jim’s picture on the front page.
Jim had pointed to his photo and sighed. “I’ve got a flabby, fat neck.”
“We call that a waddle.” Avner had made it his mission to keep Jim grounded amid the relentless rounds of media interviews and had recently added two emoticons to his texts, a flame and a pile of poop, so that he could tease Jim about his newly found “hot shit” status.
“It’s just a bad angle,” Jim’s niece said, peering sideways at the picture.
Jim paused for a minute, looking at the newspaper. “It’s surreal.”
Jim had decided to leave the Freedom to Marry party early because he was throwing a reception for his family and friends, and HRC had offered to host the party at the organization’s headquarters. Jim’s oldest brother had traveled to town from Sandusky, and John’s aunt Paulette had come from Cincinnati. Jim had asked Paulette to go with him to oral arguments because she reminded him of John.
The conference room at HRC was packed when Jim arrived. Fred Sainz was talking to HRC president Chad Griffin, who got his start volunteering for Bill Clinton’s presidential campaign and later founded the nonprofit American Foundation for Equal Rights, which successfully challenged the constitutional amendment in California that had banned gay couples from marrying. The attorney general of Virginia and some of HRC’s biggest donors were munching on beef skewers. But Jim wandered over to his brother, a construction foreman and the eldest of his five siblings. “I wish John was here,” his brother said.
The next morning, Jim woke before dawn. It was shaping up to be an 84-degree Tuesday in Washington when he arrived at the Supreme Court just before seven A.M. for an interview with CNN. After the interview, he found Paulette and hugged her, and together they walked toward their saved spots in a ticket line that stretched down the street and around the corner. The early-morning quiet was pierced by the click, click, click of cameras as Jim and Paulette slipped into place.
“It’s official,” he whispered. Paulette took his hand and squeezed.
Twice that morning she had called him John, and in the seconds before they were called inside the courthouse, she apologized. “I don’t know why I called you that.”
“He’s just with us today,” Jim said.
They entered the Supreme Court through a side door, climbed one flight of stairs, walked down the Great Hall filled with busts of the former chief justices, passed through oak doors, and finally came to the court’s chamber, with a forty-four-foot ceiling and twenty-four columns made of marble from Liguria, Italy. Jim could see Al sitting up front with other lawyers.
Outside, a protestor waved a picture of two men having sex on a sign that read FAG MARRIAGE. Inside, in a hushed courtroom at exactly 10:02 A.M., one of the most momentous civil rights cases in nearly half a century began to unfold.
We’ll hear oral argument this morning in Case No. 14-556, Obergefell v. Hodges and the consolidated cases.”
Obergefell. Jim sucked in his breath when he heard his name.
“Mr. Chief Justice, and may it please the Court.” Civil rights lawyer Mary Bonauto would speak first. A petite woman with gray hair and an easy nature, she had been tapped to deliver the argument by the lawyers in Michigan and Kentucky less than four weeks earlier. When she told them that she had never argued before the Supreme Court, one of the lawyers shrugged and shot back, “You’ve been practicing for this for twenty years.” Bonauto, a longtime attorney at Boston’s Gay & Lesbian Advocates & Defenders, had been a key player in same-sex marriage wins in Vermont, Massachusetts, and Connecticut and had won the first lawsuits challenging the Defense of Marriage Act.
She had brought along a manila folder with her notes, but as she started to deliver her opening remarks, she decided she didn’t need them. “The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society,” Bonauto said. “If a legal commitment, responsibility, and protection that is marriage is off-limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”
The justices quickly interrupted, and Bonauto wasn’t surprised. Proceedings in the Supreme Court, like those in all appellate courts, are meant only to determine whether lower courts misinterpreted law. Though lawyers give brief opening remarks, the facts of the case are kept to a minimum in favor of legal analysis and precedent. Judges frequently interrupt with questions, and Bonauto and her team had spent hours trying to anticipate what would be asked and how she would respond. “You’ll be lucky to get a word in edgewise,” Doug Hallward-Driemeier, the more experienced oralist, had told her.
“. . . The argument on the other side is that they’re seeking to redefine the institution,” Chief Justice John Roberts said. “Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.”
“I hope not, Your Honor,” Bonauto said quickly, “because . . . what we’re really talking about here is a class of people who are, by state laws, excluded from being able to participate in this institution. And if Your Honor’s question is about, Does this really draw a sexual orientation line—”
“No, my question is you’re not seeking to join the institution. You’re seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.”
“. . . If you’re talking about the fundamental right to marry as a core male-female institution,” Bonauto replied, “I think when we look at the Fourteenth Amendment, we know that it provides enduring guarantees in that what we once viewed as the role of women, or even the role of gay people, is something that has changed in our society.”
Justice Anthony Kennedy stepped in, and it seemed to Jim as if the room went still. For weeks, legal scholars and journalists had endlessly speculated that the outcome of the case would rest with the Irish Catholic jurist who had been appointed to the bench by President Reagan but had emerged in recent years as a swing vote in key wins on gay rights. Justice Kennedy had authored the majority opinion in Windsor and years earlier had sided with more liberal judges to invalidate criminal sodomy laws. But he had also voted to uphold the right of the Boy Scouts of America to ban gay scoutmasters. Even for the savviest pundits, Justice Kennedy’s ideology had been hard to pin down.
In Obergefell, it seemed likely the court would split, with left-leaning Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer siding with the plaintiffs and more conservative justices Clarence Thomas, John Roberts, Samuel Alito, and Antonin Scalia backing the states. The unknown was Kennedy, who was pressing Bonauto about the traditional definition of marriage. “. . . This definition has been with us for millennia. And it’s very difficult for the court to say, ‘Oh, well, we . . . we know better,’” he said.
“Well, I don’t think this is a question of the court knowing better,” Bonauto replied. “When we think about the debate, the place of gay people in our civic society is something that has been contested for more than a century. . . . It was over twenty years ago that the Hawaii Supreme Court seemed to indicate that it would rule in favor of marriage, and the American people have been debating and discussing this. It has been exhaustively aired, and the bottom line is that gay and lesbian families live in communities as neighbors throughout this whole country. And people have seen this—”
“You argue in your brief that the primary purpose of the Michigan law limiting marriage to a man and a woman was to demean gay people. Is that correct?” asked Justice Alito, nominated by George W. Bush in 2005 and considered one of the court’s most conservative thinkers.
“The Michigan statute and amendment certainly went out of their way to say that gay people were in some sense antithetical to the good of society,” she replied. “They wrote that—”
“And did you say in your brief that the primary purpose of that was to demean gay people?” Alito asked.
“I think it has that effect, Your Honor. I do. Now, at the same time—”
“Is that true just in Michigan or is that true of every other state that has a similar definition of marriage?”
“Well, if we’re talking about the states that have constitutional amendments, many of them are similar. . . . But even if there’s not a purpose to demean, I think the . . . commonality among all of the statutes, whether they were enacted long ago or more recently, is that they encompass moral judgments and stereotypes about gay people. Even if you think about something one hundred years ago, gay people were not worthy of the concern of the government. . . .”
“Well, how do you account for the fact that, as far as I’m aware, until the end of the twentieth century, there never was a nation or a culture that recognized marriage between two people of the same sex?” Justice Alito asked. “Now, we can infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way, or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?”
“Your Honor, my position is that times can blind,” Bonauto replied, and pointed to the issue of discrimination based on gender. “And if you think about the example of sex discrimination . . . I assume it was protected by the Fourteenth Amendment, but it took over one hundred years for this court to recognize that a sex classification contravened the Constitution. . . .”
“I don’t really think you answered my question,” Justice Alito said.
“I’m sorry.”
“Can we infer that these societies all thought that there was a rational reason for this and a practical reason for this?”
“I don’t know what other societies assumed, but I do believe that times can blind and it takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded.”
From his seat near the front of the courtroom, Al was fixed on Justice Kennedy, trying to read his facial expressions and reactions to the questions and answers. So far, none of the questions were particularly surprising, and Al thought Bonauto appeared poised, on point, and decisive.
“Do you know of any society, prior to the Netherlands in 2001, that permitted same-sex marriage?”
The question came from Justice Scalia, the longest-serving jurist on the court and among the most vocal.
“As a legal matter, Your Honor?” Bonauto replied.
“As a legal matter.”
“I [do] not.”
“For millennia, not a single other society until the Netherlands in 2001, and you’re telling me that they were all—I don’t know. What?”
“No. What I’m saying is taking that tradition as it is, one still needs, the court still needs a reason to maintain that tradition when it has the effect—”
“Well, the issue, of course, is not whether there should be same-sex marriage, but who should decide the point. . . . You’re asking us to decide it for this society when no other society until 2001 ever had it?” Scalia asked.
Al was taken aback by the question. What matters here, he thought, is not what other countries had done but what was fair and lawful in the United States, bound by a Constitution that protected the rights of all its citizens.
“. . . Did they have same-sex marriage in ancient Greece?” Justice Alito asked a few minutes later.
Now we’re talking about the definition of marriage from before the Middle Ages? Al looked from the judge to Bonauto, kicking himself for not anticipating that kind of question at the moot-court sessions they had held before the argument. But Bonauto had studied the classics in college, and though she believed the question was off base, she answered easily.
“I don’t believe they had anything comparable to what we have, Your Honor. You know, and we’re talking about—”
“Well, they had marriage, didn’t they?” Justice Alito asked.
“Yeah, they had—yes. They had some sort of marriage.”
“And they had same-sex relations, did they not?”
“Yes. And they also were able to—”
“People like Plato wrote in favor of that, did he not?”
“In favor of?”
“Same-sex—wrote approvingly of same-sex relationships, did he not?”
“I believe so, Your Honor.”
“So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?”
“I can’t speak to what was happening with the ancient philosophers—” Bonauto replied.
Justice Kennedy cut in. “But it’s you, you said that, ‘Well, marriage is different because it’s controlled by the government.’ But from a historical, from [an] anthropological standpoint, Justice Scalia was very careful to talk about societies. Justice Alito talked about cultures. If you read about . . . ancient peoples, they didn’t have a government like this. They made it themselves and it was a man and a woman.”
“There were certainly marriages . . . prior to the United States forming, and we recognize that,” Bonauto replied. “But when our nation did form into this union in 1787 and then when it affirmed the Fourteenth Amendment in 1868, that’s when we made—our nation collectively made a commitment to individual liberty and equality.”
Later, Chief Justice Roberts said, “One of the things that’s truly extraordinary about this whole issue is how quickly has been the acceptance of your position across broad elements of society. . . . But if you prevail here, there will be no more debate. I mean, closing the debate can close minds, and it will have a consequence on how this new institution is accepted. People feel differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”
“. . . When I think about acceptance,” Bonauto said, “I think about the nation as a whole, and there are places where, again, there are no protections, virtually no protections for gay and lesbian people in employment, in parenting. You know, the Michigan petitioners, for example, are not allowed to be parents of their own children, the children that the State of Michigan has placed with them and approved of their adoptions.”
“Miss Bonauto, I’m concerned about the wisdom of this court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons,” Justice Scalia said. “They are not likely to change their view about what marriage consists of. And were the states to adopt it by law, they could make exceptions to what is required for same-sex marriage, who has to honor it and so forth . . .”
“Your Honor, of course the Constitution will continue to apply, and right to this day, no clergy is forced to marry any couple that they don’t want to marry. We have those protections.”
“But right to this day,” Justice Scalia continued, “we have never held that there is a constitutional right for these two people to marry, and the minister is—to the extent he’s conducting a civil marriage—he’s an instrument of the state. I don’t see how you could possibly allow that minister to say, ‘I will only marry a man and a woman. I will not marry two men.’ Which means you would, you could, have ministers who conduct real marriages that are civilly enforceable at the National Cathedral, but at St. Matthew’s downtown because that minister refuses to marry two men, and therefore, cannot be given the state power to make a real state marriage. I don’t see any answer to that. I really don’t.”
Jim twisted in his seat. Though spectators had to leave their wallets, keys, and cell phones in stacked rows of lockers just outside the courtroom, Jim had decided to carry in a few sheets of paper and a pen to take notes. He paused and studied Justice Scalia, stung by the comment. Jim looked down at his lap, unsure what to write next.